Citation Nr: 21004702 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 17-33 964 DATE: January 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities, meaning his posttraumatic stress disorder (PTSD) and several others, render him unable to continue working in any substantially gainful versus just marginal capacity. CONCLUSION OF LAW The criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.18, 4.19.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1965 to November 1968. This claim was most recently before the Board of Veterans’ Appeals (Board) in April 2020, when it was remanded back to the Veterans Affairs (VA) Regional Office (RO) for further development – including to obtain all outstanding treatment records relevant to this claim and for VA medical examinations reassessing the functional impact of the Veteran’s service-connected disabilities to, in turn, assist the Board in determining whether he is entitled to a TDIU. That remand development since has been completed, as directed, but the claim continued to be denied, so it is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998) Entitlement to a TDIU The Veteran applied for a TDIU in April 2015, stating that he was unable to maintain employment due in large part to his service-connected PTSD. He did not specify when he became too disabled to work, but the record indicates that he last worked full time in January 2001. He then worked for himself, painting houses, until January 2015. He is currently retired. The issue in a TDIU case is whether the Veteran's service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, that permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The fact that a claimant is unemployed, as is the case here, or has difficulty obtaining employment is not enough. The ultimate question is whether the Veteran can perform the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In determining if unemployability exists, consideration may be given to the Veteran's level of education, special training and previous work experience, but not to age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19.  A TDIU may be assigned by the Board in the first instance where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.34l, 4.16(a). For the purpose of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident, or affecting both upper extremities or both lower extremities, or a single bodily system, are considered as one, collective disability. 38 C.F.R. § 4.16(a). The Veteran has the following service-connected disabilities and corresponding ratings for them: PTSD, rated as 70-percent disabling; type II diabetes mellitus with erectile dysfunction, rated as 20-percent disabling; left upper extremity diabetic neuropathy, rated as 20-percent disabling; right upper extremity diabetic neuropathy, rated as 20-percent disabling; left lower extremity sciatic diabetic neuropathy, rated as 20-percent disabling; right lower extremity sciatic diabetic neuropathy, rated as 20-percent disabling; tinnitus, rated as 10-percent disabling; and bilateral hearing loss, rated as 0-percent disabling (so noncompensable). His combined rating is 90 percent. See 38 C.F.R. § 4.25 (VA’s Combined Ratings Table). Therefore, the § 4.16(a) schedular rating requirements for a TDIU are met. Having determined the Veteran’s service-connected disabilities meet the threshold minimum rating requirements of 38 C.F.R. § 4.16(a), the remaining inquiry is whether they also render him unemployable – meaning unable to obtain or maintain what could be considered substantially gainful employment versus employment that, instead, is just marginal in comparison. On March 14, 2019, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Here, when considering all the relevant evidence of record, the Board finds the evidence at least in relative equipoise on the question of whether the Veteran is unable to work in a substantially gainful capacity as a result of his service-connected disabilities. To reiterate, marginal employment is not substantially gainful employment. See 38 C.F.R. §§ 4.16(a), 4.18. In May 2015 and September 2016, the Veteran filed Applications for Increased Compensation based on Unemployability – indicating that he was employed by Boston Edison from January 1981 to January 2001. He later testified that he was offered an early retirement due to overstaffing at his underground lineman position. His Applications state that he worked from January 2001 through January 2015, 40 hours a week, as a self-employed painter. He reported earning $14,000 in the year prior to submitting his May 2015 application. He submitted a concurrent personal statement that he tried to work painting houses, but “dealing with” homeowners immediately became a problem. In September 2016, he filed another personal statement that he stopped his home-painting business because he could not work with homeowners any longer. He did not elaborate on the circumstances of his difficulties. However, mental health treatment records reflect PTSD symptoms manifesting as anxiety, irritability, and similar difficulties interacting with others. His treating social worker wrote several statements on his behalf, the most recent of which was submitted to the VA in March 2020. She describes the Veteran as having PTSD symptoms that negatively affect his concentration, memory, and capacity to accomplish tasks, handle stress, and engage in effective relationships. She states that these significantly impact his reliability and consistency in the workplace. The nature of the Veteran’s self-employment means that he could control his hours, assignments, and jobs, implicating the possibility of marginal employment. Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment may be held to exist on a facts-found basis including, but not limited to, employment in a protected environment such as a family business or sheltered workshop even when earned annual income exceeds the poverty threshold. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. The Veteran’s statements make clear that he worked part time, and when dealing with homeowners became a problem, he stopped working. As discussed, his provider attested to a number of PTSD symptoms negatively affecting his ability to maintain employment. As discussed below, the Veteran’s multiple diabetic neuropathies cause pain and tingling in his bilateral feet, impairing his ability to stand and walk. This noted functional impact on employability coupled with the part time work and the fact that he dissolved his employment situation when it became difficult suggests that he was not really gainfully employed between January 2001 and January 2015. Instead, his employment was tantamount to a protected work environment. As directed on remand, the Veteran underwent new VA medical examinations for PTSD, type II diabetes mellitus, and peripheral nerve disabilities in September 2020, and one for hearing loss in November 2020. His PTSD examination report found occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood, worsening lately in response to external stressors. The examiner noted increased distress and negative impact on functioning since his last examination in October 2016, with symptoms including near-continuous panic or depression affecting the ability to function, difficulty understanding complex commands, impaired abstract thinking, disturbances in motivation and mood, impaired impulse control, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). The Veteran’s peripheral nerve examination established functional limitations on his ability to stand or walk for extended periods due to upper and lower, bilateral diabetic neuropathies. And although his hearing loss examination did not find functional loss, it noted the Veteran’s complaints that people around him constantly yell because he cannot hear them. Considering the Veteran's social limitations due to his PTSD, combined with the other limitations, including physical, described due to his peripheral nerve disabilities and hearing loss, the Board finds the evidence to be at least in equipoise in showing that he is precluded, by reason of his service-connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (noting that "applicable regulations place responsibility for the ultimate TDIU determination on the [adjudicator], not a medical examiner"). In resolving reasonable doubt in his favor, entitlement to a TDIU is established. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.